Malibu Media, LLC v. John Doe subscriber assigned IP address 71.229.236.179

Filing 46

ORDER that the Recommendation of United States Magistrate Judge ECF No. 41 is AFFIRMED and ADOPTED as an order of this court. Defendants objections ECF No. 42 are OVERRULED. It is FURTHER ORDERED that the Plaintiffs Motion to Strike Affirmative Defenses ECF No. 36 is GRANTED to the extent that Defendants First, Second, and Fifth Defenses are hereby STRICKEN, by Judge Wiley Y. Daniel on 9/16/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02707-WYD-MEH
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN BUTLER,
Defendant.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

This matter is before me on Plaintiff’s Motion to Strike Affirmative Defenses (ECF
No. 36), filed August 7, 2014 and the Recommendation of United States Magistrate
Judge (ECF No. 41), filed August 13, 2014. The defendant filed an objection (ECF No.
42) to the recommendation. I overrule the objection and affirm and adopt the
recommendation.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the defendant objects and I have considered carefully the
recommendation, the objections, and the governing law.
The magistrate judge thoroughly analyzed the defendant’s affirmative defenses
and correctly applied the legal standards set forth in Fed. R. Civ. P. 12(f). Specifically,
the magistrate judge considered each of the three challenged affirmative defenses and
found that none could succeed as a matter of law. While the defendant argues that the
magistrate judge erred in not allowing him the opportunity to respond to plaintiff’s Rule

12(f) motion, I note that the “district court possesses considerable discretion in
disposing of a Rule 12(f) motion to strike redundant, impertinent, immaterial, or
scandalous matter.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1382 (3d ed. 2014). Additionally, Rule 12(f) permits a Court to act “on its
own” or “on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading.” Rule
12(f). Thus, I overrule defendant’s objection finding that the magistrate judge clearly
had authority to act on his own initiative in striking three of defendant’s five affirmative
defenses.
Turning to the merits of the Recommendation, I find that the analysis and
conclusions of the magistrate judge are correct. In his objection, the defendant
disagrees with the magistrate judge’s “simplistic reasoning” and “obscure” rationale.
(Objection at 4). However, I conclude that the arguments asserted by the defendant in
his objection are incorrect and find that the magistrate judge properly and thoroughly
detailed both the governing law and his reasoning in the recommendation to strike three
of the five asserted affirmative defenses.
Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge (ECF
No. 41) is AFFIRMED and ADOPTED as an order of this court. Defendant’s objections
(ECF No. 42) are OVERRULED. It is
FURTHER ORDERED that the Plaintiff’s Motion to Strike Affirmative Defenses
(ECF No. 36) is GRANTED to the extent that Defendant’s First, Second, and Fifth

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Defenses are hereby STRICKEN.
Dated: September 16, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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